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Civil & Discrimination Law
(Sexual Orientation Discrimination)
On the 1st October 2010 the majority of the provisions of The Equality Act 2010 came into force. The details are contained in Statutory Instrument 2010 No. 2317. The 2010 Act unifies all Anti-discrimination legislation and therefore replaces all the anti-discrimination legislation mentioned below. In theory new Act does not change the law but merely consolidates it into one statute however we shall have to see what happens in practice
At the same time as the Government introduced The Employment Equality (Religion or Belief) Regulations 2003 it also introduced The Employment Equality (Sexual Orientation) Regulations 2003 Similarly when Part 2 of the Equality Act was passed making Religious Discrimination in the supply of goods and services illegal, provision was made for the Equality Act (Sexual Orientation) Regulations 2007 which similarly make Sexual Orientation Discrimination illegal.
The government has issued Guidance on the Employment Regulations and Guidance on the Goods and Services Regulations. The possible scope of the Goods and Service Regulations was considered in the Northern Irish case of Christian Institute and an Application for Judicial Review  NIQB 66 which looked at the very similar Northern Irish Sexual Orientation Regulations.
“Sexual Orientation” is defined similarly in Reg 2(1) of the 2003 regulations and s81 Equality Act 2006 as meaning an individuals sexual orientation towards -
persons of the same sex;
(b) persons of the opposite sex; or
(c) persons of the same sex and of the opposite sex.
It should be noticed that this definition cuts both ways. It is just as unlawful for a homosexual or lesbian to discriminate against a “straight” person as it is for a “straight” person to discriminate against a homosexual or lesbian person.
One of the
problems which was recognised when these regulations were introduced is the fact
that in many religions Homosexuality is regarded as a sin therefore it was
argued that it would be difficult if not impossible to oblige Religious
employers to employ practicing homosexuals or for religious organisations to
provide services to them. These points are addressed by Reg 14
2007 Regulations and Reg 7(3) 2003 Regulations which states
that the regulations do not apply in Employment situations
(a) the employment is for purposes of an organised religion;
(b) the employer applies a requirement related to sexual orientation -
(i) so as to comply with the doctrines of the religion, or
(ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers; and
(c) either -
(i) the person to whom that requirement is applied does not meet it, or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.
One point that does not appear to have been considered in this case or in the Government Guidelines is the possibility of a situation where the Religion or Belief Regulations come into conflict with the Sexual Orientation Regulations .What happens if an employee (A) is sincerely and religiously opposed to working with Homosexuals. If A is obliged to work with a Homosexual fellow worker (B) does that breach A’s rights under the Religion or Belief Regulations and if A is allowed not to work with B does that breach B’s rights under the Sexual Orientation Regulations ? One thing that can be said with certainty is that at some time an Employer and eventually a Tribunal is going to be faced with that conundrum
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